Software maker Siebel Systems Inc. yesterday was accused by the Securities and Exchange Commission, for a second time, of disclosing nonpublic information to select investors.
The SEC, in a lawsuit, alleged that Chief Financial Officer Kenneth A. Goldman and Mark D. Hanson, a senior vice president, made upbeat statements to institutional investors about Siebel's business activity levels and sales transaction pipeline -- an indicator of the company's future financial performance -- just weeks after the company had made a series of public statements to the contrary.
The private statements directly caused mutual- and hedge-fund manager Alliance Capital Management to change its investment position in Siebel stock from short -- in which an investor sells borrowed stock on a bet that it will decline in price -- and buy stock the following day, the lawsuit contended.
The positive statements were made at conferences and one-on-one meetings with institutional investors between April 28 and April 30, 2003, as well as at a dinner hosted by Morgan Stanley on April 30, the SEC said. Earlier that month, Siebel, based in San Mateo, Calif., had issued an earnings warning, attributing the shortfall to "deals that slipped" and the struggling economy.
The SEC's Regulation FD, adopted in 2000, forbids a company from disclosing information that can affect its stock price to select parties -- securities analysts, broker-dealers, investment advisers and institutional investors -- before disclosing it to the public.
Siebel said in a statement last night that it did not violate Regulation FD and that "despite the company's repeated requests, the SEC has not provided any credible evidence that the company believes supports the SEC's allegations."
In November 2002, Siebel agreed to pay $250,000 to settle an SEC complaint that it disclosed nonpublic information at an invitation-only conference sponsored by Goldman Sachs in 2001. A condition of that settlement was that Siebel not violate the rules in the future.
Scott Friestad, a lawyer with the SEC, called Siebel's alleged repeat offense "disappointing."
"We thought that we sent a fairly strong message to Siebel," Friestad said yesterday. "That message apparently didn't have its intended effect because the company committed the violation only six months later."
In the complaint, the SEC is seeking a permanent injunction to prevent further violations and unspecified civil penalties.
According to the SEC, Alliance had short-sold 108,200 Siebel shares before the private disclosure. It then quickly closed out its short position, by buying shares, and two Alliance portfolio managers placed orders to purchase an additional 114,200 shares of Siebel stock. At least two of the attendees at the Morgan Stanley dinner purchased Siebel stock the next morning, and several recipients of a Morgan Stanley e-mail that morning purchased the stock as well, the SEC said.
According to the SEC, on May 1, Siebel's stock price rose 8 percent on volume that was nearly double the average daily volume for the preceding 12 months.